article classical rhetoric, practical reasoning, and the law of evidence

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ARTICLE
CLASSICAL RHETORIC,
PRACTICAL REASONING,
AND THE LAW OF EVIDENCE
EILEEN A. SCALLEN
TABLE OF CONTENTS
Introduction .................................... 1718
I. Back to the Beginning- Historical and Philosophical
Origins of Interpretation Debates ................ 1720
A. Classical Rhetorical Theory and the Interpretation
of Legal Texts ............................ 1720
B. Pragmatism in the Creation of the Federal Rules
of Evidence .............................. 1732
II. The Contemporary "Schools" of Statutory
Interpretation ............................... 1738
A. Intentionalism ........................... 1741
B. Purposivism ............................. 1743
C. Textualism and the Plain Meaning Rule ......... 1745
D. Practical Reasoning ........................ 1747
III. Applying Practical Reasoning .................... 1759
A. Beech Aircraft Corp. v. Raineyr A Flawed Paradigm .. 1760
B. United States v. Salern. Plainly and Poorly Argued 1767
.
* Associate Professor of Law, University of California, Hastings College of the Law. I
would like to thank David Faigman, Ed Imwinkelried, Mary Kay Kane, David Leonard, Roger
Park, Tom Morawetz, Deborah Tam Steiner, and Eleanor S-ift, who were kind enough to read
and comment on earlier versions of thisArticle, and Valerie Barreiro, my research assistant. My
research also has been supported by an award from the Roger Traynor Scholarly Publication
Fund. Special thanks go to the editors and staff of The Amniran Uni, rsity Lbw Rei. This
Article is dedicated to the memory of my grandfather, Raymond A. Scallen, a trial laryer who
proved that ethical legal argumentation is not an oxymoron.
1717
1718 THE AMERICAN UNmERSrIY LAW REviEw [Vol. 44:1717
C. Daubert v. Merrell Dow Pharmaceuticals- A
Mixed Bag .............................. 1778
D. Williamson v. United States: A Step Backward ...... 1795
E. Tome v. United States- One Step Forward, One
Step Back ............................... 1808
Conclusion ...................................... 1814
For what is sillier than to talk about talking,
since talking in itself is ever a silly business,
except when it is indispensable.
Cicero, De Orato I. xxiv. 112.
INTRODUCTION
There is a lot of talk about talking in the legal academy at present.
Legal scholars are taken With the subject of interpretation of legal
language in all of its forms-constitutions, statutes, judicial opinions,
rules, and regulations.' The myriad of articles on interpretation of
legal texts discuss many possible approaches, also discussed in this
Article,2 but they do not focus on the special context considered
here-that of rules created to regulate the adversary system.
The advocacy context, in which courts interpret rules of procedure
such as rules of evidence, is a wonderful forum to explore the
problem of interpretation as it presents the debate in stark form:
evidence rules have meaning only in the context of particular cases,
so how shall we interpret abstract rules of evidence in concrete cases?
This Article traces the debate over interpretation of legal texts back
to its roots in the ancient law courts, demonstrates how the debate
played out in the creation of the Federal Rules of Evidence, and
illustrates how the debate plays out in current interpretations of the
Federal Rules.
1. Although one wonders whether significant others are listening. As one commentator
notes:
The Justices have not been reading their Derrida. Indeed, despite the lengthy
importunings of legions of law professors, the Justices have been neglecting to read not
only Derrida, but Foucault, Gadamer, Rorty, and Heidegger as well. Instead, as the
statutory construction cases of the 1989 Term demonstrate, they have been spending
their time reading (Noah) Webster, relying, both in fact and in articulatedjustification,
on notions of plain meaning routinely derided in contemporary legal scholarship.
Frederick Schauer, Statutory Construction and the CoordinatingF unction of Plain Meaning, 1990 S.
Cr. REV. 231, 231.
2. See generally infra Part II.
1995] INTERPRETING EVIDENCE RULEs 1719
Other articles have criticized the United States Supreme Court's
current approach to interpreting the "plain meaning"3 of the Federal
Rules of Evidence,4 but the authors neither put the problem into the
context offered here, nor advocate the alternative approach discussed
here. In this Article, I will argue that of all the possible "schools" of
interpretation, the best approach to the construction of the Federal
Rules of Evidence is "practical reasoning," a school firmly rooted in
the realm of classical rhetoric and the method best suited to the
philosophical perspective of pragmatism that led to the creation of
the Federal Riles of Evidence.' Although this Article is concerned
primarily with the Federal Rules, its insights extend to any procedural
system with a codified set of evidence rules, for codification creates a
tension between the desire for predictability and certainty-provided,
in the views of some, by a "hard" text-and the demand for flexibility
posed by circumstances unforeseen by the drafters of the code.
3. See infra Part ILC (discussing 'plain meaning" rule of interpretation as applied by U.S.
Supreme Court).
4. Se, &g., Randolph N.Jonakait, The Supreme Co4 Plain MAaning and the Changat Rulzs
of Evidc 68 TEX. L REv. 745, 749, 782-86 (1990) (explaining that application of 'plain
meaning" approach to Federal Rules of Evidence will initially alter Rules in way unintended r
drafters and will subsequently freeze powers ofinterpreation previously recognized as belonging
to courts); see also Glen Weissenberger, The Supreme Court and the Inteprrtationo f the FederalR ules
ofEviden,453 OHIo ST. UJ. 1307,1319-32 (1992) (offering paricularly critical review of Court's
deference to legislature as rationale for using plain meaning); cf Edwrard R. Becker & Avbia
Orenstein, The Federal Rules of Evidence After Sixten Y-arm-The Effir of Plain Affaning'
Jurispudence,t he Need for an Advisory Committae on the Rules ofE videnk, and SutMstansf or Selcte
Revisin of the RPde 60 GEo. WASH. L REV. 857, 867-76 (1992) (s-nipathizing with clarity
provided by plain meaning approach but noting weaknesses of approach when Congress has
provided no dear intent to alter common law). But seeEdwuardJ. Imwiinkelried, A BriefDefnse
of the Supreme Court's Appm to IMnt at of the Federal Rule ofE Vdenc, 27 IND. L REV.
267, 268-78 (1993) (using Federal Rule of Evidence 402 to support and defend plain meaning
approach). For direct response to Imwinkelried's assertions, see Glen Weissenberger, Are the
FederalRedesofEtvidenaS tatutet 55 OHIO ST. LJ. 393, 396-98 (1994) 1hereinafter Iln 'b-er
In a two-part article, Professor Taslitz argues that even when the Supreme Court says it is
following the plain meaning of the Rules, frequently it is not. Andrew E. Taslitz, Dattherts Guide
to the FederalR ules ofE videc Public Qoie Hmeneutic and the Not-SoPlain MeaningR ule, 32
HARV.J. ON LEGIS. 3 (1995) [hereinafter Taslitz, Daubert];A ndrew E. Taslitz, InIrpi, MAed
and the FedralR ules ofEvidenec A Calfora PoliticaM RlislicH ermenmics,3 2 HARV.J. ON LEGIS.
(forthcoming 1995).
5. Professor Taslitz mentions the practical reasoning approach with approval, but does not
specifically apply it, preferring to discuss interpretation of evidence rules under the broader
rubrics of hermeneutics and the dynamic process of statutory interpretation advocated by
Professor Eskridge, who emphasizes interpreting statutes within their larger societal, political,
and legal contexts. Taslitz, Dauber, supra note 4, at 7; cf William N. Eskridge, Jr., Dnamic
Statutoy Interpretation,1 35 U. PA. L REv. 1479, 1479 (1987) (advocating application of d)amic
approach to statutory, constitutional and common law interpretation). Practical reasoning is
certainly consistent with and encompassed within these broader approaches, but I find it useful
to discuss the ramifications of practical reasoning specifically, especially given its tight
connection with the classical history of legal advocacy.
1720 THE AMERCAN UNIvESriy LAw REvIEw [Vol. 44:1717
In Part I, I develop the historical and philosophical context of the
interpretative problem, first tracing the roots of the interpretation
debate back to its beginnings-in the law courts of ancient Greece
and Rome-and then showing how similar issues, resulting tension,
and resolutions surrounded the creation of the Federal Rules of
Evidence. In Part II, I trace the debate to its modern context, as it
plays out in approaches to statutory interpretation, and argue that the
best resolution of the problem is its ancient one, practical reasoning.
In Part III, I will explain, illustrate, and critique the use of practical
reasoning as an approach to interpreting evidence rules, focusing on
five United States Supreme Court cases: Beech Aircraft Corp. v. Rainey,6
United States v. Salerno7, Daubert v. Merrell Dow Pharmaceutical8s,
Williamson v. United States,9 and Tome v. United States.10
I. BACK TO THE BEGINNING: HISTORICAL AND PHILOSOPHICAL
ORIGINS OF INTERPRETATION DEBATES
A central message of this Article is that the current problems in
interpreting the Federal Rules of Evidence arise in part from our
failure to recall the historical and philosophical perspectives that are
central to the advocacy context: rhetoric and pragmatism. Thus, in
this Part, I aim to refresh our recollection of these historical and
philosophical issues, for this context is helpful in deciding how to
interpret modem evidence rules. I begin with the origin of the
interpretative debate in classical rhetorical theory, which developed
from the needs of ancient law courts and lawyers, and attempt to
show how similar issues, concerns, and solutions surfaced during the
creation of the Federal Rules of Evidence.
A. ClassicalR hetorical Theory and the Interpretation of Legal Texts
The history of Western advocacy systems and Western rhetoric go
hand in hand. Nevertheless, the links between law and classical
rhetoric are seldom acknowledged." I think this is in large part
6. 488 U.S. 153 (1988).
7. 112 S.C t. 2503 (1992).
8. 113 S. Ct. 2786 (1993).
9. 114 S. Ct. 2431 (1994).
10. 115 S.C t. 696 (1995).
11. SeeWILIAM TWINING, RETINKING EVIDENCE 219 (1990) (suggesting that legal profesion
no longer values the study of rhetoric). As Twining's citations indicate, some notable exceptions
exist. See geneally, e-g., PETER GOODRICH, READING THE LAW 168 (1987); PETER GOODRICH,
LEGAL DISCOURSE 1 (1986); BERNARD JACKSON, LAW, FACr AND NARRATivE COHERENCE 85-124
(1988); BERNARD JACKSON, SEMIOTICS AND LEGAL THEORY 12 (1985); CHAiM PEREu.,AN& L.
OLBREC s-TYrEcA, THE NEv RHETORIC 20-23 (1971).
1995] INTERPRETING EVIDENCE RULES 1721
because rhetoric suffers from a confusing variety of definitions, to the
point where even scholars of rhetoric tend to eschew the term,
preferring to use "the art of advocacy"12 or simply "communica-
tion."3
Definitions of rhetoric are plentiful and often not particularly
helpful; they are either too narrow or too broad, and neverjust right
to suit another's intellectual taste.14 One can use "rhetoric" in its
most pejorative sense: empty bombast, hot air, all form and no
substance, or language that seeks to manipulate and hoodwink the
unsuspecting listener.'5 Additionally, one can move to a slightly less
negative (but more banal) notion of "rhetoric" as style: the presenta-
tion of the message.'6 One can also use "rhetoric" in a more
utilitarian sense: the art of using language to persuade, that is, to
seek agreement, cooperation, or action.17 Finally, one can view
"rhetoric" in its broadest sense: a synonym for communication and
the culture that is created through communication.18
Several other useful exceptions exist. Sr4 eg.,John E. Simonett. Formsi Rhdofic and Jnring
Younger 73 MINN. L REV. 805,805 (1989) (stating that legal profession has not placed adequate
value on art of rhetoric); Gerald B. Wetlaufer, Rhetoric and ItsDenialInL zgalDiscurse.7 6 VA. L
REV. 1545, 1549 (1990) (employing rhetoric as method of studying legal thinking); James B.
White, The Ethics ofA rgument: Plato's Gorgias and the Modern Laijae, 50 U. CHL L REV. 849. 871-
94 (1983) (using Plato's comparison between rhetoric and dialectic as method for analy-zing
legal profession).
Martha Nussbaum, a philosopher and classicist, recently critiqued the legal literature on
practical reasoning. See Martha C. Nussbaum, SLptidrm About Pra'calReasoni n Literature and
the Law, 107 HARV. L REv. 714, 715 (1994). Nussbaum equates the work of modem advocates
of practical reasoning, such asJudge Richard Posner, with the position of radical, or Pyrrhonic,
skepticism, while she sets up her own version of practical reasoning as neo-.Aristotilian. Id. at
717-18, 729. Nussbaum, however, curiously omits reference to the sophists discussed in this
Article.
The most notable omission is Isocrates, with his emphasis on the moral quality of the orator.
See infra notes 51-58. My own argument is that modem advocates of pmctical reasoning are
returning to both the pragmatic philosophy and the belief in the importance of rhetoric in chic
discourse that marked the sophistical strain that follows into Aristotle's (and later, Cicero's and
Quintilian's) work. See infra notes 20-112 and accompanying text (examining works of early
rhetoricians).
12. Simonett, supra note 11, at 805.
13. RiCHARD D. RIEKE & RANDALL K. STUTMAN, COMMU A'I4O4 IN LEGAL ADVOQACY 32
(1990).
14. Sw Wayne Booth, The Scope of Rhetoic Today: A PoemialE xcusion, in THE PROSPECIS
oF RHmroc 93-114 (Lloyd F. Bitzer & Edwin Black eds., 1971). Wayne Booth frames the
problem in terms of fish and nets. If we use too large a net, we will catch some fish we might
want to discard; if we use too small a net, we will miss some fish we uant to catch. Id. at 95.
15. SoNJA K. Foss Er AL, CONTENMPORARY PrsPEC'rzvEs ON RHz'rotuc 1 (2d ed. 1991).
16. See RICHARD A. PoSNERI LAW AND LERATUR A ISUNDERSrOOD REIATION 272
(1988).
17. See infta notes 48-91 and accompanying text. This view is, in part, shared by Isocrates,
Aristotle, Cicero, and Quintilian, although one senses in their discussion of the moral excellence
of the orator that rhetoric has a broader meaning.
18. SeeKENNEr BURKE, ARHETORIC OF MoTrms 43 (1969) (characterizing rhetoric as"the
use of language as a symbolic means of inducing cooperation in beings that by nature respond
to symbols"). To Burke, rhetoric is a part of the larger category of "symbolic action," which also
1722 THE AMERiCAN UNivERSnTY LAW REvIEw [Vol. 44:1717
In this Article, I return to the ancient Greco-Roman understanding
of rhetoric, looking to its blend of the utilitarian use of rhetoric and
the creative quality of rhetoric, for the guidance that it may shed on
today's task of interpreting rules of evidence. The value of a look to
the past is manifold, and is discussed later in more detail,19 but can
be quickly summarized here. First, it gives us a more complete view
of the context of the debates over the proper interpretation of legal
texts. Second, it tends to humble us, lest we fool ourselves into
believing we are discovering something radically new about legal
interpretation. Third, it expands our frame of reference so that we
may bring a deeper understanding to the problem of applying
abstract rules to concrete cases.
A brief look at the history of classical rhetoric reveals the inexorable
bond between rhetoric and law.2° Possibly the first "theorist" of legal
rhetoric was Corax of Syracuse, who wrote and taught in approximate-
ly 465 B.C.E.2' Corax's view of rhetoric arose in the context of a
specific judicial problem in Syracuse, a Greek colony on the island of
Sicily. As a democratic government had recently overthrown a
dictatorship,2 the courts were faced with disputes over property:
who was the rightful property owner, the owner before the dictator-
ship or the owner given the property by the dictatorship? These legal
disputes increased the need for training in forensic rhetoric. 3 In
ancient Greece, citizens could not hire advocates; they were required
includes poetics, science, and philosophy. Id. Yet Burke distinguishes rhetoric from three types
of symbolic action: "rhetoric is concerned with persuasion and identification, poetics Is
concerned with symbolic action in and for itself, science is concerned with symbolic action in
relation to the ends of factual knowledge, and philosophy is concerned with symbolic action in
relation to discussions offirst principles." Foss ETAL, supran ote 15, at 174. James Boyd White,
a classicist and legal scholar, notes that often rhetoric "is thought of either as a second rate way
of dealing with facts that cannot really be properly known or as a way of dealing with people
instrumentally or manipulatively, in an attempt to get them to do something you want them to
do." James B. White, Law as Rhaori, Rhelorc as Law: The Arts of Culturala nd Cormmunal Life, 52
U. CHI. L. REV. 684, 687-88 (1985). For White, however, rhetoric is something much broader,
it is "an art of constituting culture and community." Id.a t 692. In his view, the way the
members of the legal community talk to and about each other, clients, and the world constantly
creates the identity of the community and culture. Id. at 690.
19. See infra notes 97-112 and accompanying text.
20. For a discussion of the link between dassical rhetoric and law, see generally HAROLD
BARRETT, THE SOPHISTS 5 (1987); THOMAs M. CONLEY, RH roRIc IN THE EUROPEAN TRADITION
1-52 (1990);JAMEs L GOLDEN ETAL, THE RHETORIC OF WESTERN THOUGHT 6-7 (4th ed. 1987);
GEORGE A. KENNEDY, CLASSIcAL RHETORIC AND ITS CHRISTIAN AND SECULAR TRADITION FROM
ANCIENT TO MODERN TIMES 81 (1980) [hereinafter KENNEDY, CLASSICAL RHETORIC]; GEORGE A.
KENNEDY, A NEW HIsTORY OF CLASSICAL. RHETORIC 15 (1994) [hereinafter KENNEDY, NEW
HsTORY];JOHN POULAKOS, SOPHIsrfcAL RHETORIC IN CLASSIcAL GREECE 14 (1995).
21. SeeFOSS ETAL, supran ote 15, at 1.
22. See GOLDEN ET AL, supra note 20, at 6-7.
23. See Foss ET AL, supra note 15, at 1-2. But cf.C ONLEY, supran ote 20, at 4-5 (questioning
historical validity of Corax's role in origin of rhetorical theory).
1995] INTERPRETING EVIDENCE RULES 1723
to argue their own cases in court, before large juries drawn by lot.2'
Trials consisted chiefly of a speech by the plaintiff or prosecutor4
and a speech by the defendant.26 There were no judges; the jury
decided both issues of fact and law.Y Trials could last only one
day.2" There were no appeals; the only ground for relief from
judgment was the discovery of new evidence." Forensic oratory skill
was an essential part of the life of a Greek citizen." Teachers of
rhetoric, such as Corax and his student Tisias, who brought Corax's
teachings to Athens, offered instruction in the art of legal advoca-
1
cy.
Corax and Tisias are best known for developing the argument from
probability as the basis for forensic proof, in which matters of fact
could not be demonstrated with absolute certainty 2 They encour-
aged their students to use probability to argue on either side of a
case." For example, a plaintiff suing for assault might argue that
because he feared his assailant, he would never have attacked first.
The alleged assailant would argue that the plaintiff vas more likely to
strike first because he would want the advantage of the first blow.
Interestingly, the Greeks preferred this kind of circumstantial
reasoning, for they "deeply distrusted direct evidence in both criminal
and civil cases because of a knowledge that it could be faked or
bribed."34
Corax and Tisias were the forerunners of the class of teachers of
rhetoric known as the sophists.' The sophists, actually the first legal
educators, have a bad reputation in modem times for many reasons,
24. KENNEDY, CLASSICAL RHiiromc, supra note 20, at 18. Women, noncitizens, and
physically disabled individuals, however, had to be represented in criminal cases ranother.
l
KENNEDY, NEv HISroRy, supra note 20, at 15. In criminal casesjuries could include up to 500
citizens. See GOLDEN Er AL, supra note 20, at 7 (noting that "Ojlury panels of 6000 were
regularly on call").
25. There were only private prosecutors; criminal cases were pursued tr persons with a
personal stake in the case. KENNEDY, NEW HISrORY, supra note 20, at 15.
26. GoLDEN Er AL, supra note 20, at 7.
27. KENNEDY, NEv HISTORY, supra note 20, at 15.
28. KENNEDY, NEv HISTORY, supra note 20, at 16. The time allotted for each side "ws
measured by a water clock." Id.
29. KENNEDY, NEV HISTORY, supra note 20, at 15.
30. GOLDEN ET AL, supran ote 20, at 7.
31. GOLDEN ET AL, supran ote 20, at 7.
32. Foss Er AL, supra note 15, at 2.
33. FOSS ET AL, supra note 15, at 2.
34. KENNEDY, CLASSICAL RHETORIC, supra note 20, at 21.
35. FoSs ET AL, supra note 15, at 1; se also iU at 2 (noting that "swpasm eans kno-,ledge
or wisdom"); cf.B ARRErT, supra note 20, at 3 (noting that term sophist also was sometimes used
respectfully to refer "to poets, musicians, wise men, philosophers or other accomplished and
admired persons").
1724 THE AMERICAN UNIERsIY LAW REVIEW [Vol. 44:1717
primarily historical." Many of the sophists were not Greek citizens,
but itinerant foreigners, and the Greeks mistrusted foreigners.37
Moreover, some of the sophists claimed that they could teach wisdom
or virtue for a price.'I This was doubly offensive to the Greeks, who
believed that virtue could not be taught or transmitted, and certainly
could not be purchased for a fee. 9 Plato, a philosopher and a
wealthy member of the Athenian elite, seized on these aspects of the
sophists and ridiculed most of them in his dialogues4. 0 Plato reviled
the sophists, who he blamed for the kind of rhetoric that led to the
death of his teacher Socrates at the command of an Athenian jury.4'
Two sophists in particular were favorite targets of Plato. Protagoras
of Abdera (480-411 B.C.E.) is best known for the fragment of his
thought that survived: "Man is the measure of all things," which
conveyed a relativistic perspective that Plato, a believer in divine and
absolute truth, found reprehensible.42 Plato was similarly opposed
to the radical relativism of Gorgias of Sicily (480-375 B.C.E.).41
Gorgias was obsessed with the structure and sound of language.44 As
Professor George Kennedy noted, "On Gorgias' lips oratory became
a tintinnabulation of rhyming words and echoing rhythms.,43
Because of his stylistic excesses, Gorgias was an easy target for
Plato.46 When we think of sophistry today, we thus generally think
of it in terms of the vile picture that Plato painted of Gorgias: a
manipulative, scheming con artist.47
The real sophists, as opposed to those portrayed by Plato, had a
world view close to the philosophical perspective of pragmatism, the
basis of the "school" of interpretation called practical reasoning.48
"The sophists envisioned an incomplete, ambiguous, and uncertain
world, interpreted and understood by means of language."49 Despite
its uncertainties, the world of the sophists was a practical world,
36. See POULAKOS, supra note 20, at 16-18.
37. See PouLAKos, supra note 20, at 16-18.
38. See Foss Er AL, supra note 15, at 2.
39. See Foss Er AL, supra note 15, at 2.
40. See PoULAKos, supra note 20, at 74 (citing Plato, Gorgias, in PLATO 258 (W.R.M. LUunb.
trans., 1929)).
41. BERNARD KNOX, THE OLDEST DEAD WHITE EUROPEAN MALES AND OTHER REFLECTIONS
ON THE CLASSICS 97 (1993).
42. See Foss ET AL, supran ote 15, at 2-3.
43. KENNEDY, CLAssIcAL RHETORIC, supra note 20, at 29.
44. See Foss Er AL, supra note 15, at 3.
45. KENNEDY, CLASSICAL RHETORIC, supra note 20, at 29.
46. See POULAKOS, supra note 20, at 74.
47. See Foss ET AL, supran ote 15, at 4.
48. See infra Part I.D (describing practical reasoning as means of actualizing pragmatism).
49. Foss ET AL, supra note 15, at 3.
1995] INTERPRETING EVIDENCE RULES 1725
concerned with concrete argumentation and decisionmaking in the
realms of law and politics
This strain of sophistry appears most prominently in the work of
Isocrates (436-338 B.C.E.),51 who shared the sophistic interest in
rhetoric, but avoided the excesses and vices of some other sophists.12
Isocrates advocated rhetoric as the core' of Greek citizens' educa-
tion. Isocrates' notion of rhetoric, however, included what we
would consider today the study of liberal arts: philosophy, science,
mathematics, literature, history, and communication.' In his work,
Against the Sophists5, Isocrates advocates the pursuit of practical
wisdom, for which moral character is essential.56 Isocrates, in
contrast to many of his contemporaries, believed that moral character
could not be taught, but that "the study of speech and politics ...
[could] help to encourage and train moral consciousness."57 This
idea of the good, or moral, orator is essential to later classical
rhetoricians, such as Cicero and Quintilian, and may be useful in
determining what makes for the "best" interpretation of evidence
8
rules
The philosopher and scientist Aristotle (384-322 B.C.E.), although
a student of Plato, adopted the sophistic emphasis on the contingent,
the contextual, and the practical elements of rhetoric in his treatise,
On Rhetoic.59 In On Rhetoric, Aristotle sought to systemize rhetoric,
which he defined as "an ability, in each [particular] case, to see the
available means of persuasion."6' Aristotle contrasted demonstrative
reasoning, which aims at scientific certainty, with practical reasoning,
which he termed dialectical reasoning, in The Rhetori The Topics, and
On Sophistical Refutations.1 Rhetoric, however, also belongs to the
50. Se FOSS ET AL, supran ote 15, at 3.
51. SeeFoss r AL., supra note 15, at 3. Interestingly, Isocrates, the founder of a school of
rhetoric, was himself afraid to speak in public, and thus began his career as a wiTter of speeches.
Id.
52. See Foss Er AL, supra note 15, at 3.
53. KENNEDY, CLASSIcAL RHETORIC, supra note 20. at 31. According to Kennedy. "Isocrates
made rhetoric the permanent basis of the educational system of the Greek and Roman world
and thus of many centuries as well, and he made oratory a literary form." Id.
54. GOLDEN ET AL., supra note 20, at 54-55.
55. Isocrates, Against the Sophist% in ISOCRATES 163 (George Norlin trans., 1929).
56. See KENNEDY, CLASSICAL RHEORoC, supra note 20, at 32.
57. KENNEDY, CLAssICAL RHETORIC, spa note 20, at 32.
58. See infra notes 218-34 and accompanying text (discussing relationship between modem
school of practical reasoning and classical rhetoric).
59. ARSrOTLE, ON RHErORiC (George A. Kennedy trans., 1991); see aLso FOSS Er AL, sp-a
note 15, at 4.
60. AmsromT, supran ote 59, at 36s;e e aso FOSS Er AL, supra note 15, at 4.
61. See George A. Kennedy, Introdution to ARISrOTLF, ON RHErORIC, =pra note 59, at 3,
12-13.
1726 THE AMERICAN UNIVE iTy LAW REviEw [Vol. 44:1717
realm of practical reasoning. Professor George Kennedy discussed the
difference between Aristotle's view of dialectic and rhetoric:
Dialectic proceeds by question and answer, not, as rhetoric does, by
continuous exposition. A dialectical argument does not contain the
parts of a public address; there is no introduction, narration, or
epilogue, as in a speech-only proof. In dialectic only logical
argument is acceptable, whereas in rhetoric... the impression of
character conveyed by the speaker and the emotions awakened in
the audience contribute to persuasion. While both dialectic and
rhetoric build their arguments on commonly held opinions
(endoxa) and deal only with the probable (not with scientific
certainty), dialectic examines general issues (such as the nature of
justice) whereas rhetoric usually seeks a specific judgment, (e.g.,
whether or not some specific action was just or whether or not
some specific policy will be beneficial).6
Logic and dialectic are pure "tools" or "methods" in Aristotle's
categories of knowledge;6 they "are applicable to all study but with
no distinct subject matter of their own."'I Rhetoric, in Aristotle's
view, however, is a blend of method, theory, and practice.65 Rhetoric
is in part a method (like dialectic), and yet reflects the theoretical
and normative aspects of ethics and politics; rhetoric is communica-
tion that moves the listener toward practical applications.66 Rhetoric,
more than the classical sense of dialectic, approximates the task of the
judge and advocate.
Aristotle identified three types of rhetoric: deliberative, judicial,
and epideictic.67 Although these types of oratory shared some
common questions, they each served specific functions: deliberative
rhetoric was political discourse in which the listener was asked to
evaluate a proposed future action;' judicial rhetoric was forensic
discourse in which the listener was asked to judge a past action;69
and epideictic rhetoric was ceremonial discourse in which the listener,
as spectator, judged the artistic ability of the speaker. ° Modem
62. Kennedy, supra note 61, at 26.
63. See Kennedy, supra note 61, at 12.
64. Kennedy, supra note 61, at 12.
65. See Kennedy, supra note 61, at 12-13.
66. See Kennedy, supra note 61, at 12-13.
67. ARISTOTLE, supra note 59, at 48.
68. AiusroTLE, supra note 59, at 48. "The deliberative speaker is fundamentally concerned
to establish that a course of action will be expedient for the audience, or at least not harmful
to it. He may have something to say about justice, but that is secondary to his purpose."
Kennedy, supra note 14, at 72.
69. &e AusrToTLE, supra note 59, at 48.
70. AiusToTLE, supra note 59, at 48. The final cause, or end, of epideictic speech, which
concerns present blame or praise of an individual, is demonstration of the honorable or the
shameful. I&